Lord Wolfson of Tredegar debates involving the Home Office during the 2019 Parliament

Thu 12th May 2022
Tue 22nd Mar 2022
Tue 22nd Mar 2022
Wed 2nd Mar 2022
Mon 28th Feb 2022
Nationality and Borders Bill
Lords Chamber

Lords Hansard - Part 1 & Report stage
Mon 10th Jan 2022
Police, Crime, Sentencing and Courts Bill
Lords Chamber

Lords Hansard - Part 1 & Lords Hansard - part one
Mon 10th Jan 2022
Police, Crime, Sentencing and Courts Bill
Lords Chamber

Lords Hansard - Part 2 & Lords Hansard - part two

Migration and Economic Development Partnership with Rwanda

Lord Wolfson of Tredegar Excerpts
Wednesday 15th June 2022

(2 months ago)

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Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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The noble Lord will understand that I cannot talk about other countries, but I know that other countries are interested in the scheme we have agreed with Rwanda.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, two points are absolutely clear here when one talks about the rule of law. I declare an interest as a practising barrister. First, I would not like to be identified with several of my clients, with the greatest of respect to them. A lawyer should not be identified personally with the cause for which they are arguing, nor should a lawyer be identified, with the greatest of respect, with the people smugglers engaged in this enterprise.

Secondly, does the Minister agree that the European Court of Human Rights would do itself more favours if, instead of passing orders with no named judge attached to them, just as justice is done in this country by judges whom we can identify, orders of the European court were also in the name of an identified judge?

Baroness Williams of Trafford Portrait Baroness Williams of Trafford (Con)
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I used to be so grateful to have my noble friend beside me. I am now very grateful for his wisdom behind me, and he is absolutely right.

Queen’s Speech

Lord Wolfson of Tredegar Excerpts
Thursday 12th May 2022

(3 months ago)

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, it is a great pleasure to follow the right reverend Prelate. I declare my interest as a practising barrister, in what is my maiden speech from the Back Benches. I do not know whether the convention against controversiality therefore applies to me, although as the formal Motion before the House is to propose a humble Address to Her Majesty, nothing can be less controversial, or indeed command more unanimous acclaim.

I would like to say a few words about the proposed measure to replace the Human Rights Act with a Bill of Rights. I am conscious that having done, let us say, a fair amount of work in this area while serving as a Minister, I feel a little like the expectant father who, having seen the 30-week scan, now paces anxiously outside the delivery room to see what on earth has happened in the meantime. I hope that the Bill will be delivered both safely and in rude health but, as we wait for it, a little historical context might be in order.

It might come as a shock to some commentators, but human rights did not begin in 1998 with the passage of the Human Rights Act. The UK signed the European Convention on Human Rights in 1950, and extended the right of individual petition to the European Court of Human Rights in 1966. What really changed in 1998 was the ability of individuals to vindicate their convention rights in the UK courts, rather than having to get a train to Strasbourg. As we have heard again this morning, the UK will remain a signatory to the convention, and convention rights will still be enforceable in our courts. One might therefore ask what all the fuss is about.

One answer is that, rather like the Judicial Review and Courts Act in the last Session—and I declare an appropriate interest there as well—too many commentators appear to work on the basis of, “Tweet first, read the Bill later”. Others take it as axiomatic that anything emerging from a Conservative Government must be bad, although it was a Conservative Government who signed and ratified the European convention in the first place. The truth is that human rights remain controversial because the subject is often the place where law and politics meet—and I shall make four short points in that context.

First, human rights law is often seen as something which causes problems rather than provides protections. People moan about “human rights” in the way that they moan about “health and safety”, although I suspect that the absence of either would cause them problems—they would miss both if they were not there. I do not put all our current constitutional problems at the door of the noble and learned Lord, Lord Falconer of Thoroton, who will speak next, although the rather attenuated role of the modern Lord Chancellor is one of them, but he might agree with me that, in retrospect, the language of “bringing rights home”, used for the 1998 Act, was unfortunate because it cast human rights as a foreign implant in our legal soil, whereas in truth many of them actually have firm jurisdictional roots in this country and have been grafted on and become part of our common law tradition.

Secondly, as often with law, the issue is frequently not the rights themselves but the way they have been interpreted, a point made forcefully in several papers from Policy Exchange. That is because the Strasbourg court uses the living instrument theory when interpreting the convention, which ends up with that court deciding what additional rights it thinks a modern democracy ought to have, and which, necessarily, are not found in the text of the convention itself. So, the convention has been held to apply extraterritorially—for example, to British Army bases in Iraq—despite there being no basis in the text for that conclusion. Rights in the text are given a radically new meaning. Article 8, which was obviously intended to protect personal and family life from the surveillance of totalitarian regimes, is now found to extend to noise abatement issues, the legal status of illegitimate children and the non-payment of rent. Those issues are important, but my point is that in a democracy they are better resolved not in a courtroom but in a parliamentary Chamber.

That brings me to my third point. Law is sometimes messy, and politics, as I now know only too well, can be messier. But politicians—at least, some of them—are elected, while judges are not; politicians can be removed, judges cannot. I value our judges enormously, even when, perhaps especially when, they decide against my clients. But it is because of that respect that I do not want to see judges being pulled into what are essentially political or moral issues: these should be decided here and not on the other side of Parliament Square.

My final point is that debate is good, both here and in the public square, both the physical and the online public square. When the Bill of Rights is laid before Parliament, I want to see an energetic public debate. As has been said, free speech is the cornerstone of rights; the right, ultimately, on which all other rights depend. I therefore wait with interest to see how that proper emphasis on freedom of expression is to be squared with the apparent approach in the Online Safety Bill to limit speech which is deemed—I am not sure by whom, where or on what basis—to be entirely lawful but none the less harmful. I take the view that people need to know what the boundaries are, and those boundaries we call “law”. Legal consequences should follow only when legal boundaries have been breached. That is, I suggest, part of a society governed by the rule of law.

We heard the prophet Amos quoted a few moments ago. I will conclude with the psalmist, for whom justice and law are the foundation of God’s throne, of which Her Majesty’s Throne in this Chamber is a constant reminder. I suggest that justice and law are, and should be, the foundation of our society as well.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts
Motion C
Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar
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Moved by

That this House do not insist on its Amendment 71, to which the Commons have disagreed for their Reason 71A.

71A: Because police officers are already subject to a duty to cooperate during investigations, inquiries and formal proceedings and it would be premature to add to such provision pending further consideration by the Government.
Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I will also speak to Motionexpand-col4 K on secure schools, which is in this group.

The House will recall that Amendment 71 would introduce a duty of candour for the police workforce. The other place has now considered this amendment and rejected the proposed duty, without, I might add, putting the amendment to a vote.

The Government take police integrity and accountability extremely seriously. As has been outlined to the House previously, in February 2020 we introduced a statutory duty of co-operation for serving police officers as part of wider integrity reforms. This duty forms part of the standards of professional behaviour set out in Schedule 2 to the Police (Conduct) Regulations 2020, and therefore has the force of law.

For the benefit of the House, I will reiterate the extent and focus of this duty. It says:

“Police officers have a responsibility to give appropriate cooperation during investigations, inquiries and formal proceedings, participating openly and professionally in line with the expectations of a police officer when identified as a witness”.


A failure to co-operate is a breach of the statutory standards of professional behaviour by which all officers must abide, and could therefore result in disciplinary sanction. I therefore suggest again to the House that this duty to co-operate puts a greater onus on officers than the duty of candour provided for in Amendment 71, because a breach of this duty could ultimately lead to dismissal. We are reluctant to dilute the existing measures in place to compel individual officers to co-operate.

This duty to co-operate was introduced in 2020, after the issues highlighted in the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences, and the issues relating to the work of the Daniel Morgan Independent Panel. We are keen that this duty becomes rooted within the police workforce before considering any further changes to legislation. The recently commenced inquiry, chaired by the right honourable Dame Elish Angiolini QC, will provide a proper test for this duty. Noble Lords will also be aware that a response to the Daniel Morgan Independent Panel and the Bishop James Jones report concerning the bereaved Hillsborough families’ experiences will provide a government view on a wider duty of candour for all public bodies. Before the Government respond to these reports, it is of course imperative that the Hillsborough families are given the opportunity to share their views.

We will continue to assess the impact of the existing duty on police co-operation with inquiries and investigations. As we consider the case for a broader duty of candour for public servants and bodies, we will determine whether the existing duty is sufficient to ensure public confidence. As for timing, I can assure the House that we will set out our conclusions later this year.

Given these considerations and the decision of the elected House, I respectfully ask the House not to insist on Amendment 71.

Turning to Amendment 107, the House will recall that the amendment sought to confirm that local authorities can establish and maintain secure 16 to 19 academies, either alone or in consortia. The elected House disagreed with this amendment by a substantial majority of 190. In inviting this House not to insist on the amendment, I remind noble Lords that there is no legal bar preventing a local authority setting up an entity capable of entering into academy arrangements directly with the Secretary of State, or indeed doing so itself. This is not prevented by the Academies Act. I therefore ask the House not to insist, on the grounds that this renders the amendment unnecessary and it could have disruptive consequences for the academies legal framework.

I appreciate that existing government policy is not completely aligned with the spirit of this amendment. But I want to be positive, and recognise the expertise of the local government sector and the critical role that it already plays. Local authorities have a long-established role in children’s social care and the provision of secure accommodation for children. I should therefore highlight that, in practice, there are already important ways in which local authorities can be—and already are—involved in academy trusts, which we would certainly be open to utilising also in secure schools. Trusts can, and do, procure services from local authorities; some local authorities have established spin-out companies specifically to provide services to trusts and maintained schools alike. In principle, there would be nothing to prevent a spin-off company entering into an agreement with the Secretary of State for Education to establish an academy trust.

Our vision for secure schools is to take a new and innovative approach to the delivery of youth custody and to engage visionary, child-focused providers—many of which are charities—in the running of establishments. It would therefore certainly be possible, for example, for a charity and a local authority to come together to put forward a bid to establish a trust in which both parties could have some involvement across both the governance structure and the delivery of services.

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Lord Rosser Portrait Lord Rosser (Lab)
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There are, as has been said, two issues here, the duty of candour and secure academies. I note what the Minister said on the duty of candour and must say that our views are rather more in line with those just expressed by the noble Lord, Lord Paddick. One might think it rather odd, particularly at the present time when trust in the police appears to be at such a low level, that the Government and the Commons decided to disagree with such an amendment, but it is their prerogative to do so.

As the Minister said, this issue is not going to be dropped. There are people within Parliament, including ourselves, and people outside Parliament, to whom reference has been made, who intend to pursue the issue of a duty of candour. I think I am right in saying that the Minister referred to the fact that the Government would further consider the position—indeed, that is given as a reason for disagreeing—and that they would come up with conclusions later this year. While indicating that we intend to pursue the issue, we will, with some reluctance, leave this in that context. It is certainly not going to be pushed to one side now. It will be pursued and we will wait to see what conclusions the Government come up with later this year. The issue of trust in the police is a serious matter and I know the Government agree. We need to make sure that the mechanism is in place to improve the levels of trust that currently seem to exist.

On secure academies, the Government and the Commons have disagreed the amendment from the noble Lord, Lord German, which would put explicitly in the Bill that local authorities can establish and maintain secure academies. The aim of the amendment was to put beyond doubt that applications from local authorities to run secure academies would be welcomed and would be considered on their merit, on a level playing field with other providers.

The Government’s response has been that there is no legal barrier to local authorities setting up an entity that could enter into an academy arrangement with the Secretary of State, so there is not a legal barrier to them establishing a secure academy. The Government said that the Ministry of Justice

“will assess in detail the potential role of local authorities in running this new form of provision, before we invite applications to run any future secure schools.”—[Official Report, Commons, 28/2/22; col. 803.]

The Minister also made that point.

Our response in the Commons was that this does not go far enough. We argued that local authorities have the expertise needed to run services and provide care for vulnerable children with a high level of need in a secure environment and that the Government should widen the pool of expertise that providers bring and ensure that local authorities are explicitly brought into the fold when planning for secure academies.

We recognise that the Government have committed to look at the involvement of local authorities in providing secure academies before any new applications are invited, so we will now deal with and pursue this issue outside of the Bill. However, we strongly support the noble Lord, Lord German, in saying that what is needed, and what we will keep calling on Ministers to deliver, is, frankly, not vague statements that a local authority could provide a secure academy but a proactive change to bring the expertise that local authorities have into that pool of providers.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I am grateful to the noble Lords who took part in this debate. I will take matters fairly briefly, given the amount of other business before the House.

On the duty of candour, I emphasise the essential point that the disciplinary system provides clear sanctions that can lead to dismissal. We should not introduce criminal sanctions for the police alone. Ultimately, the inspectorate can determine whether forces are following the guidance. We will monitor that extremely carefully.

I do not want to take up the House’s time too much on the report, which has been published in the last half an hour. My right honourable friend the Home Secretary has already issued a statement, which noble Lords will be able to find online, but my understanding is that the Metropolitan Police has 56 days to respond formally to the report. The Home Secretary will of course return to Parliament to provide a full government response once the final report and responses have been received.

I am grateful to all noble Lords for their engagement on the issue of secure schools. I have tried to set out the legal position clearly. I hope that the undertaking that I have set out will be sufficient. Again, with apologies to the House for not dealing in too much detail with the new report, because I am sure there will be other opportunities to debate it, I beg to move.

Motion C agreed.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts
Moved by
Lord Wolfson of Tredegar Portrait Baroness Williams of Trafford
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That this House do not insist on its Amendment 107, to which the Commons have disagreed for their Reason 107A.

107A: Because the amendment is unnecessary as there is no legal barrier to local authorities setting up and running academies.

Motion K agreed.

Nationality and Borders Bill

Lord Wolfson of Tredegar Excerpts
Tuesday 8th March 2022

(5 months, 1 week ago)

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Lord Berkeley of Knighton Portrait Lord Berkeley of Knighton (CB)
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My Lords, I will make a few comments to amplify the remarks of my noble friend Lady Meacher. I have just been reading a most remarkable book by a doctor, who as an eight or nine year-old child escaped from Afghanistan to try to realise his vision of becoming a doctor and thus being able to support his family back in Afghanistan. In trying to secure a voyage here, the bureaucracy of our immigration system, which I am afraid is outrageously being demonstrated in Calais, meant that this child fell into the hands of traffickers. He arrived here with a forged passport, so was sent to Feltham young offender institution. My point is that unless we improve our ability to admit refugees—particularly at a time like this, as we have heard today—we will play into the hands of these people. Like that child, so many of these refugees are just desperate for a better life; he wanted to support his family.

That child had experienced post-traumatic stress disorder of the most awful sort, having seen friends and relatives bombed and shelled and having walked among mutilated bodies. He had nightmares and flashbacks, but he did not know that he had post-traumatic stress disorder and could not understand why he was finding it so difficult to explain to the authorities that he had come from this troubled background. It was only years later, as the noble Baroness, Lady Meacher, mentioned, that he realised that it must be because of post-traumatic stress disorder.

This extraordinary person started the most wonderful foundation, Arian Teleheal, saluted by the Government, which does telemed work with children and victims all over the world. He is a wonderful example of everything which is great in this country and everything that we need to make better. He knew that if he could get here and get training as a doctor, he could change the circumstances of those he had left behind in Afghanistan —and my goodness, he did. However, we must make it easier for people such as him to come here and benefit from our education, and then do wonderful work, such as what he wanted to do, as a doctor.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, the debate has shown that the House is unanimous on two points. The first is that my noble friend Lady Williams of Trafford should be congratulated, and the second is that the House did not much like the Government’s Bill. I associate myself wholly with the former, and I will seek to set out the Government’s position on the latter. Let me go through the amendments in turn.

Amendments 65 and 66 seek to remove Clauses 57 and 58 from the Bill entirely. The effect would be to remove modern slavery from the one-stop process and would mean that modern slavery claims would be dealt with separately from the one-stop process that addresses human rights and protection claims. That does not make much sense, for either the victims or the national referral mechanism, for at least two reasons. First, treating the two types of claims as distinct means that a victim might have to describe the same traumatic events repeatedly, which nobody wants to see. Secondly, decisions would be made about their future and their right to protection and support in isolation from, and perhaps in ignorance of, the full facts, which might mean that people who would otherwise get protection are denied it.

Those amendments, and Amendment 70ZA, do not make sense from the point of view of making the NRM an efficient, transparent and fair process. They display a lack of understanding about how the NRM works, where, in line with the low threshold for referral—I will come back to the thresholds later—we simply require relevant information at an early stage, even of a limited nature, to enable key issues to be identified from the outset. That allows early access to support and gives decision-makers a clearer picture of the individual’s experience, which in turn means a more comprehensive decision, to be taken in the round, including, crucially, the victim’s age when the relevant exploitation took place.

Perhaps more than any other group, children will benefit from early identification and protection, and from having decisions made in respect of their status and their support with as full an awareness of relevant facts and context as possible. In response to the concerns of the noble Lord, Lord Coaker, echoed by the right reverend Prelate the Bishop of Durham, we see no benefit to child victims in them raising modern slavery issues after any asylum or protection decisions have been made. That would only delay their ability to access the support and protection that they need.

I have read widely the briefings which I and other noble Lords have received, and seen that critics have argued, as has been said, that the clause will stop victims from coming forward. We do not see how a clause that encourages early disclosure of information and early identification, where any negative credibility implications are non-determinative and apply only when there are no good reasons for delay, would discourage victims from coming forward. As to evidence, I say again that the measure will allow for early identification, and we do not want victims to have to describe the same events repeatedly.

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Baroness Butler-Sloss Portrait Baroness Butler-Sloss (CB)
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I am sorry to interrupt but will the Minister deal with why children are going through the NRM? The Home Office, through the Minister, told me that the NRM was not suitable for children, who should be dealt with under the Children Act.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I do not think I am saying anything inconsistent. I am saying that, for the reasons I have set out—I was just starting on the point and hope I will be able to develop it—we do not want to create a two-tier system. Of course, we recognise the vulnerabilities of children. The modern slavery statutory guidance, which I think the noble and learned Baroness referred to, provides for the specific vulnerabilities of children. This clause does not change that. It is also right that our domestic legislation should align with our international obligations, and that includes ECAT. Children get protection from the NRM because they are recognised as victims of modern slavery; that is why they get protection.

On Amendments 67 and 68, I want to reassure noble Lords that we are currently working with stakeholders and operational partners to develop the guidance in a way that is clear for decision-makers and victims. The reasonable grounds threshold is, and will remain, low, as intended by ECAT, to identify potential victims. The House will forgive me, but we need to be clear about this: ECAT sets out that signatories have certain duties when there are reasonable grounds to believe that a person has been a victim or “is a victim” of modern slavery or human trafficking. The right reverend Prelate the Bishop of St Albans raised concerns that Clause 59 was raising the threshold. Respectfully, it is not. Clause 59 aligns the Modern Slavery Act 2015 with ECAT, but it is already the language used in the modern slavery statutory guidance for England and Wales, under Section 49 of that Act.

Indeed—I have it on my iPad—paragraph 14.50 of the guidance sets out the test of

“whether the statement …‘I suspect but cannot prove’ the person is a victim of modern slavery … is true ... or whether a reasonable person having regard to the information in the mind of the decision maker would think there are Reasonable Grounds to believe the individual is a victim of modern slavery”.

So, in the guidance, the two tests are each used; we are not raising the test at all but aligning it. Nothing will change in practice; we are aligning our domestic legislation to our international obligations. The guidance also uses the phrase “suspect but cannot prove” as part of the test. Both phrases that I have read out are used in the guidance as being indicative of when the threshold is met. We are not raising the threshold and have no intention of doing so, but it is right that we keep setting that out in guidance and not in primary legislation.

Turning to Amendment 70, I thank my noble friend Lord McColl of Dulwich for his continued engagement. We are of course committed to providing support to victims of modern slavery but we believe that this should be provided on a needs basis. We are committed to maintaining our international obligations under ECAT, and this Bill confirms that, where necessary, support and protections are provided from a positive reasonable grounds decision up to the conclusive grounds decision. Indeed, there is a five-year contract, currently valued at over £300 million, which demonstrates that commitment. Importantly, however, support for victims, including safehouse accommodation, financial support and access to a support worker are already available based on need. There is no time limit for that support.

Each individual victim will have different needs. The amendment, however, removes any needs-based assessment and treats all 12,727 victims who entered the NRM in 2021 as being one of a kind, assuming that they will all need the same level of support. We committed in the other place to providing, where necessary, appropriate and tailored support for a minimum of 12 months to all those who receive a “positive conclusive grounds decision”, and I have just repeated that here.

Finally, Amendment 70 would also reduce clarity, because it refers to assisting the individual in their personal situation. There is no definition of “personal situation” within ECAT, and Clause 64 addresses this issue by setting out circumstances where leave will be granted to confirmed victims. However, Amendment 70 requires no link to the relevant exploitation, which means that a victim could be granted leave to pursue an entirely unrelated compensation claim or assist with an unrelated investigation, and that is not what ECAT was all about.

Before I sit down, I should respond to the noble Lord, Lord Alton of Liverpool, and the right reverend Prelate the Bishop of Durham, as well as the noble and learned Baroness, Lady Butler-Sloss, who all mentioned guidance in one form or another. I can confirm that officials would be very pleased to engage on the development of the guidance, to which I have referred on a number of occasions. It will be published over the coming months, but we welcome that engagement. I also assure them and the rest of the House that we will bring forward modern slavery legislation as soon as parliamentary time allows.

I apologise for the length of my response, but there were a number of amendments in this group. For the reasons I have set out, I invite noble Lords not to press their amendments.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I shall just respond to the Minister briefly. I thank him for his reply and all noble Lords who have contributed to the debate.

The one fundamental point that I wish to make to the Minister is that, in all his responses, he failed to talk about the statistic referring to the dramatic increase of 47% in the number of victims, in the duty to notify process, who refused to consent to their names being put forward to the national referral mechanism. That is 3,190 reports of adult potential victims via that process who did not consent to their names being put forward. The Minister did not refer to that—and at its heart that is because people already, before the implementation of the Bill, are frightened to come forward and interact with the Government. That is the reality of the situation. For all the Minister’s protestations and reassurances, and all the statements that it will be done on a case-by-case basis, it does not alter the fact that already people are frightened of coming forward and being identified.

All the amendments before us seek to do is to address some of that problem. For example, Amendment 66, on which I will wish to test the opinion of the House, addresses the legislation where it says that if the people who do interact are late in providing information, they will be penalised and it must be taken into account and their claim refused. We are told that it does not matter because, on a case-by-case basis, they can be reassured—yet we are going to pass primary legislation to say that that provision must be included.

Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, under Clause 18, where an asylum seeker provides late evidence, this should damage their credibility. Amendment 33 in the names of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green of Deddington, would provide that a person’s credibility should also be damaged where that person fails to produce ID documents when they enter the UK or are intercepted at sea. We do not support the clause or believe it should be part of the Bill, so we do not support the addition to it. A person’s credibility should be based, as it always has been, on the full picture and the worth of the evidence that is submitted.

As we have just heard from the noble Lord, Lord Paddick, where people are fleeing the horrors of war and risk to life, they may not bring the right documentation, or it may have been lost or stolen along the route. As we can see from recent horrors around the world, I am not sure that it would be anybody’s first priority to go back to wherever they were to find any documentation they might have—it would be to get out of danger. However, under the amendment of the noble Baroness, Lady Neville-Rolfe, and the noble Lord, Lord Green, they would be penalised: it would be a failure by the claimant to provide identifying documents. Such a carte blanche failure to produce identifying documents would mean that such people seeking asylum would automatically be excluded from doing so. I do not think that that would be something that the country or, indeed, this Chamber would want.

There are other issues I wish to raise that are more relevant to the next amendment; however, if this amendment is put to a vote, we will vote against it.

Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I am grateful to my noble friend Lady Neville-Rolfe for raising the issue and of course I understand the concerns that lie behind it.

Clause 18 adds two new behaviours to the existing credibility provisions in Section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It introduces the principles that providing late evidence without good reason or not acting in good faith should be damaging to the claimant’s credibility. Where, conversely, there are good reasons for providing evidence late, that would not affect the claimant’s credibility.

The concept that certain conduct should be damaging to credibility is not new. Decision-makers must already consider the claimant’s conduct. It is then open to the Home Office or the courts to decide the extent to which credibility should subsequently be damaged. The focus of Clause 18 is, therefore, the Home Office and then the judicial decision-making process. It is intended to address the issue of late evidence raised in unfounded protection and human rights claims and put beyond doubt that behaviour designed to abuse the system will be taken into account. Clause 18, therefore, is intended to apply to those individuals who have made a protection or human rights claim and have been issued with an evidence notice as per Clause 17. It is not intended to apply, for example, to individuals immediately when intercepted in the territorial waters of the United Kingdom.

Against that background, I suggest that Amendment 33 is unnecessary. The destruction, alteration or disposal of a passport without reasonable explanation, or the failure to produce a passport on request to an immigration officer or to the Secretary of State—again, without reasonable explanation—are behaviours to which Section 8 already applies. The good faith requirement in the Bill is intended to address behaviours such as those mentioned in the amendment, as well as any other behaviours that a deciding authority thinks are not in good faith. Specific instances of a lack of good faith are necessarily caught by the broader provision that refers to good faith: the greater includes the lesser. Therefore, there is no need to single out the behaviours prescribed in this amendment.

As to the detail of the amendment, I say that verification of someone’s identity normally takes place on land. However, should a claimant be in possession of their passport or identity document and fail to provide this when requested by an immigration officer, Section 8 will apply, as I said. Moreover, where evidence is provided late following receipt of an evidence notice in a protection or human rights claim—again, without good reason—this should be taken into account as damaging the claimant’s credibility.

As this amendment refers to specific examples of behaviour designed to abuse the system, and that type of behaviour as a whole is already caught by the provisions of the Bill, I respectfully suggest that the amendment is necessarily unnecessary. For those reasons, I respectfully invite my noble friend Lady Neville-Rolfe to withdraw it.

Baroness Neville-Rolfe Portrait Baroness Neville-Rolfe (Con)
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My Lords, I thank those who have spoken in this brief debate. The very real problems of refugees, noted by the noble Lord, Lord Hylton, and of course the fact that some people do not have passports are very well understood by me. That is why my proposal is to add an extra factor that needs to be taken into account, not least to reduce the power and profiteering of the traffickers. As has been said, tribunals and officials can then take a fair view.

Having said that, I think that there seems to be a chink of light in some of the comments from my noble friend Lord Wolfson on how this would work. Perhaps we could discuss further before Third Reading what the Government’s approach will be, the associated regulations and so on. I am very conscious that we need time for many votes today, especially as the electronic system seems a bit slow, so for today I beg leave to withdraw my amendment.

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Lord Coaker Portrait Lord Coaker (Lab)
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My Lords, I do not want to add much to what the noble Baroness, Lady Coussins, and my noble friend Lady Lister said in support of this important amendment. They outlined some of the problems well.

The amendment relates to Clause 25(2), which says:

“Unless there are good reasons why the evidence was provided late”.


It bedevils any Government that as soon as you state, “Unless there are good reasons”, the argument then becomes, “What do you mean by good reasons?” Then you produce a list and people complain that the list does not include everything. So you state that there will be guidance and then the Government do not produce guidance for people to look at to see whether it is worth it or needs to be improved. I appreciate what the noble Baroness and my noble friend said about engagement with the Minister, but these are real issues because people will be excluded from asylum claims on the basis of late provision of the evidence—and we do not know what the good reasons are that will prevent those claimants being excluded as a result of being classified as having given late evidence. It is not satisfactory.

At this stage, on Report, there is this question for the Minister. The list has been produced. The Minister will say, exactly as the noble Baroness, Lady Coussins, said, that by having a list, you will miss people out. That is why the amendment is trying to insert “but not limited to”. This is quite an unsatisfactory situation. Can the Minister not say a little more about what the guidance will say? Can he not give us a little more, in consultation with the Home Office, about whether there could be a draft of some sort, even at this late stage, to give some indication of what the guidance will be on what “good reasons” actually means? I appreciate that this is an ask for the future but the amendment tabled by the noble Baronesses, Lady Coussins and Lady Lister, is extremely important and goes to the heart of the problem with Clause 25 —notwithstanding the fact that many of us do not agree with the clause anyway. In seeking to improve the parts of the legislation that we do not agree with, what “good reasons” means is absolutely fundamental to our understanding.

As I say, I support the amendment; I appreciate that it seems to be a probing amendment. However, these are important issues and the Minister will need to go further to deal with them, I think.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I thank the noble Baroness, Lady Coussins, for her engagement with me, as the House will have heard, on the amendment, which she has redrafted since Committee, for the reasons she set out in her speech. I am also grateful to the amendment’s co-sponsor, the noble Baroness, Lady Lister of Burtersett.

We have a proud history of providing international protection to those most in need. This is a responsibility that we take seriously, but we need a system that is efficient as well as effective. By introducing a statutory requirement to provide evidence before a specified date, the Bill redresses the current balance. It is right that decision-makers have regard to the principle that minimal weight is given to evidence that is late following the receipt of either an evidence notice or a priority removal notice without good reason. The House will appreciate that Clause 25 is therefore essential to the architecture of this part of the Bill. However, at the same time, it is important not to tip the balance too far. Decision-makers in the Home Office and the judiciary will maintain their discretion as to whether, having considered the principle and in the absence of good reasons for lateness, it is appropriate in all the circumstances of the particular case to apply minimal weight to late evidence, taking into account the claimant’s particular claim and any specific vulnerabilities.

I have been asked to define “good reasons”. This has not been defined in the Bill for, if I may say so, a good reason. We cannot legislate for every case type where someone may have good reasons for providing late information or evidence in relation to their protection claim. To do so would be impractical and would detract from the important principle that decision-makers are best placed to consider an individual’s particular vulnerabilities on a case-by-case basis. I say this because “good reasons” can include both objective factors, such as practical difficulties in obtaining evidence—for example, where the evidence was not previously available—and subjective factors, such as a claimant’s particular vulnerabilities relating to their age, sexual orientation, gender identity or mental and physical health. Decision-makers must be able to respond on a case-by-case basis.

I contrast that with Amendment 34, which would place an obligation on decision-makers not only in the Home Office but in the judiciary to accept that there were good reasons for late evidence in all asylum and human rights cases where either the claimant or the claim type fell into one of the listed categories. I suggest that this would undermine the principle that we want decision-makers and the judiciary to apply their discretion on a case-by-case basis. By setting out a non-exhaustive list—I appreciate that it includes the words “not limited to”—of potential experiences or categories of claimant, it is true that this amendment does not exclude those not listed in the amendment from having good reasons. However, in any non-exhaustive list, there is a risk of focusing attention on the factors in the list, thus putting other applicants with different issues at a relative disadvantage.

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Baroness Lister of Burtersett Portrait Baroness Lister of Burtersett (Lab)
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Just before the noble Lord sits down, can he say whether there will be any consultation on the guidance? Can someone write to me on that point?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I do not have the detail at my fingertips, but I can certainly undertake to write to the noble Baroness. I was just about to sit down after inviting the noble Baroness, Lady Coussins, to withdraw the amendment for the reasons that I have set out.

Baroness Coussins Portrait Baroness Coussins (CB)
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My Lords, I thank the Minister for his reply and all other noble Lords for their support on this amendment.

I was very happy to hear the Minister’s commitment, having discussed it with the Home Office, that there would be new guidance. Assuming that this new guidance on late evidence is genuinely expanded and strengthened, this has the potential to go a long way towards meeting my objectives. However, I underline the point just made by the noble Baroness, Lady Lister, that it would be very helpful to be consulted on a draft before the two-month cut-off point when the new guidance would come into force. I would be very grateful if Home Office colleagues could take that on board. Although the noble Lord is an MoJ Minister, can he please keep on this as well, and ensure that the Home Office does not lose sight of this guidance in the greater scheme of things?

Assuming that this will be on track, it amounts to a satisfactory way of meeting my objectives and would give vulnerable and traumatised refugees some of the comfort that they deserve. On that basis, I beg leave to withdraw the amendment.

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Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I am grateful to noble Lords who propose these amendments: the right reverend Prelate the Bishop of Gloucester, speaking through the right reverend Prelate the Bishop of Durham, and the noble Baroness, Lady Chakrabarti. I agree of course with the importance of the UK carefully assessing whether asylum seekers have a well-founded fear of persecution, as required under Article 1(A)(2) of the refugee convention. However, we do not agree with these amendments which, when taken together, will effectively maintain the current standard of proof for all elements of the well-founded fear test.

There are other undesirable implications of the amendments which I will set out briefly. The House has heard short speeches supporting a number of these amendments. I have obviously got to reply to all of them, so I hope that the House will indulge me. I will try to address them in a comprehensible order, because some of the points are related and some are discrete.

I come first to the point made by the right reverend Prelate the Bishop of Durham, who asked how Clause 31 would produce clarity. Clause 31 is drafted to introduce a step-by-step process for decision-makers, considering whether an asylum seeker has a well-founded fear of persecution. The central point I would make is that currently there is no such clearly structured test.

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Lord Etherton Portrait Lord Etherton (CB)
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I have one more point of clarification. Could the Minister explain what the position will be for refugee asylum seekers who are under 16 and for whom any sexual relations would be a criminal offence?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I was coming to each of those points in my speech. I am not going to do so just yet, because I was, it is fair to say, on a different point, but I will come to those points in due course when I deal with the manuscript amendment.

Before the noble and learned Lord’s intervention, I was setting out the definition of “particular social group.” I was making the point that there is no universally agreed definition and no authoritative definition of that phrase. There is, as I have said, conflicting tribunal-level case law. For example, the right reverend Prelate the Bishop of Durham referred to the Fornah decision of this House in its former judicial capacity. The point there is that it is obiter. That is really important, because that bit is obiter: it is not part of the ratio of the decision. That really underlines my point that we cannot, with great respect, cherry-pick passages of decisions which are obiter, particularly decisions of the Upper Tribunal. Ultimately, it is for the UK, as a member state and signatory, and, for this Parliament—not the Home Office—to interpret the refugee convention. That is what we have sought to do here.

There are two clear conditions, and let me underline the following point: this is not a change in government policy. These conditions do not change the position—they reflect current government policy. The first condition is that members of the group share either an innate characteristic, a common background test that cannot be changed, or a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it.

The second condition is that the group has a distinct identity in the relevant country because it is perceived as being different by the surrounding society. The amendment would mean that a group need meet only one of the characteristics to be considered a particular social group. Obviously, that would significantly widen the scope of people who could qualify as a refugee but, relevantly for this debate, it would erode the concept that people deserve and need protection based on fundamental characteristics that go to the core of who they are, such as their faith or sexuality. It would broaden the definition to cover potentially transient factors such as an individual’s occupation, and that, we say, is incompatible with very purpose of the refugee convention.

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Baroness Kennedy of Shaws Portrait Baroness Kennedy of The Shaws (Lab)
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Will the noble Lord give way?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I am not sure that one generally takes questions on Report. I am newer than the noble Baroness, and I do not want to be rude; equally, I want to maintain the approach of the House.

Viscount Younger of Leckie Portrait Viscount Younger of Leckie (Con)
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My noble friend is correct on that. Noble Lords are guided not to speak after the Minister.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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I want to respond to the concern expressed in Committee about the impact the clause would have on vulnerable groups—particularly, for example, female claimants fleeing gender-based violence—and to respond to the right reverend Prelate the Bishop of Durham. Victims of gender-based violence may still be considered to be members of a particular social group for the purposes of making an asylum claim if they meet the conditions in Clause 32(3) and (4). In response to the noble Baroness, Lady Lister, this clause does not therefore mean that women who are victims of gender-based violence are less likely to be accepted as a member of a particular social group: all cases are assessed on a case-by-case basis.

I cannot say, of course, that all women fleeing gender-based violence will always be found to be refugees, if that was the nature of the point that was being put to me. What I can say with certainty is that the structure of the definition does not preclude it. I think I heard, in the way the noble Baroness put the question, that the example was of a woman with “good grounds”. If she is asking, “Will this application be accepted?” good grounds is not the test and therefore, if good grounds is part of the question, I am afraid that that is why I necessarily gave the answer I did. I think if the noble Baroness looks at Hansard, she will see that I have now, again, answered the question directly.

I turn to Amendment 45A from the noble and learned Lord, Lord Etherton. It is vital that we provide protection to those in the UK who require it as a result of persecution they would face due to sexual orientation, but I suggest that it goes without saying that protection must not be afforded on the basis of one’s sexual orientation where the acts in question are criminal in the United Kingdom. I shall deal with both his points.

First, I note the explanatory statement on the amendment. For those who have not seen it, I shall summarise it. The obviously well-meaning intention of this amendment is to prevent applicants under the age of consent in the UK being excluded from refugee protection—I hope I have understood that correctly. I reassure the noble and learned Lord and the House that line 9 of Clause 32 does no such thing. That is because, although an asylum applicant may be under the age of consent in the UK, they can still be persecuted as a result of their sexual orientation. For example, a 15 year-old homosexual applicant may still be recognised as a member of a particular social group should they meet the requirements of Clause 32, even though they are not legally able to consent to sexual activity in the UK. I distinguish in this regard—I hope this is helpful to the noble and learned Lord—between sexual orientation and sexual activity. In that context, I come to the other point.

Let me say what should not need to be said—of course this is not the noble and learned Lord’s intention—but we are concerned that, as drafted, the amendment could allow convicted paedophiles and other convicted sex offenders to be granted refugee status in the UK, solely on account of their criminal acts relating to their sexual orientation. Of course, that is not the intention of the amendment: we are concerned that it is an unintended consequence of it. I hope that what I have said already deals with the intention behind the amendment and reassures the noble and learned Lord.

Lastly, I come to Amendment 46. Clause 36 provides the interpretive framework for Clause 11, which sets out Parliament’s position on Article 31(1) of the refugee convention. Clause 36 is still relevant in terms of providing the UK’s interpretation of key terms in Article 31 of the convention, such as immunity from penalties, so it is not just there to serve Clause 11, which was the first point made by the noble and learned Lord. The convention does not define what is meant by coming “directly” or “without delay”. Again, we have taken the opportunity to define those terms. We have taken into account that group 2 refugees will still be protected and not refouled, and will receive relevant entitlements so that the object and purpose of the convention are upheld.

Clause 36 is clear that there is discretion not to grant differentiated entitlements where a person could not reasonably be expected to have claimed in another safe country or where a person made a claim as soon as reasonably practicable. I made points earlier as to discretion and individual assessment. So this does not necessarily rule out the position taken by the House of Lords in R v Asfaw; it will all turn on the particular facts of the case.

Finally, I will prevail on the Home Office, I hope, to write to the noble Baroness, Lady Lister, on the point she raised. For these reasons, and with apologies that it has taken a little longer than I anticipated, I respectfully invite the right reverend Prelate to withdraw his amendment.

Lord Bishop of Durham Portrait The Lord Bishop of Durham
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My Lords, I thank the Minister for his very full and considered response and all noble Lords for their contributions. The strength of feeling is strong and again I make the point that these clauses are overly punitive towards women and victims of gender-based violence. I fear that that concern was not answered in the very full answer we were given. In particular, I still do not think that the responses given take any awareness of the trauma of so many of the women who come forward. I fear that to talk about “sufficiently detailed interviews”, as the Minister did at one point, would raise hackles on that front.

I have no doubt that my right reverend friend the Bishop of Gloucester will read Hansard very carefully and may well write off the back of that. I thank the Minister for making the promise to the noble Baroness, Lady Lister—I was about to ask him to, but he got in there before us. It is rather regrettable that we have not been able to persuade the Government on these points, and the Bill will not now adequately protect those who are subject to gender-based violence. That is the deep concern. That said, with deep regret, I will withdraw the amendment.

Nationality and Borders Bill

Lord Wolfson of Tredegar Excerpts
Baroness Jones of Moulsecoomb Portrait Baroness Jones of Moulsecoomb (GP)
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The Greens support the amendment too.

Lord Wolfson of Tredegar Portrait The Paliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I am grateful to the noble Baroness, Lady Chakrabarti, the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick, for proposing the new clause. The noble and learned Lord, Lord Judge, said that it was a short one; I respectfully agree, and hope that I can be brief in response without any discourtesy to the noble and learned Lord or, indeed, the other proposers of the clause. One point in his speech on which I think the whole House agreed was when he reminded us that, whatever the question, the noble Lord, Lord Pannick, will always be able to think of an answer.

Turning to the subject matter of the amendment and the proposed new clause, I first underline what was said by my noble friend Lady Williams of Trafford as to the Government’s commitment to their international legal obligations flowing from the refugee convention. Not only is it our intention to continue to comply with all of the legal obligations under that convention but we consider that this legislation does precisely that.

Our starting point is that the provisions of the Bill are compliant with the refugee convention but, none the less, the new clause is not something that I can support. Let me set out why.

The refugee convention, as I have said before, and effectively by design, leaves certain terms and concepts open to a degree of interpretation. That is an important feature of international instruments such as the refugee convention, allowing it not only to stand the test of time—some might say that it could now usefully be reviewed, but that is a separate point—but, more importantly, to be applied in and across many jurisdictions with differing legal systems. Necessarily, therefore, there is then a need to ascribe meaning to the terms of the convention at a domestic level. That meaning is determined by each signatory to the refugee convention in accordance with the principles of the Vienna convention, taking a good faith interpretation in accordance with the ordinary meaning of the language used in the convention.

Against that background, I suggest that it is absolutely right that Parliament may pass legislation setting out how the UK interprets the refugee convention and the UK’s obligations under it. Having a clear framework of definitions, and setting out unambiguously the key principles, promotes clarity and consistency in how decisions are made; as I have said in previous debates, that is a desirable approach. The mischief that I see in this amendment is that it would risk undermining the clarity and certainty that we are trying to create by effectively giving the courts a chance to look behind the interpretation agreed by Parliament in primary legislation when that interpretation is then applied through policy and subsequent decisions.

On the one hand, we want to give the pen to Parliament, so to speak, to set out a clear understanding and interpretation of the convention; Part 2 of the Bill is very clear as to our intentions in this respect. However, I suggest that this amendment would afford the courts an opportunity to come to a different understanding when looking at the policies and practices which put that system into effect. Of course, I accept that it will be for the courts to interpret the legislation once enacted, and I do not disagree that the courts have a role in overseeing whether policies or decisions comply with the interpretation of the convention as set out in the Bill; that is a given. But it is Parliament’s interpretation that is key here. It is not for the court to set out its own, potentially conflicting interpretation of the refugee convention and the obligations under it.

Therefore, far from creating a certain and consistent approach, this promotes uncertainty with policies and decisions being potentially judged against differing interpretations. If we are content, as I suggest we should be, that Parliament is legislating in compliance with the approach open to all state parties under the Vienna convention—that is, affording a good faith interpretation to the refugee convention—then this clause is not only unnecessary but promotes confusion and uncertainty for all those seeking to apply to, and comply with, the asylum system.

It would also be unusual to put in primary legislation the statement that Parliament, when legislating, is complying with its international obligations. International conventions cover a wide area of legislation, and if we did so here it could create questions as to why we did not do so in other statutes and why other statutes do not provide the same assurances.

The noble and learned Lord, Lord Judge, as alerted by the noble Lord, Lord Pannick, mentioned Section 2 of the Asylum and Immigration Appeals Act 1993. That already sets out the primacy of the refugee convention in domestic law. I will repeat what it says:

“Nothing in the immigration rules (within the meaning of the 1971 Act) shall lay down any practice which would be contrary to the Convention.”


Accordingly, if the aim of this proposed new clause is that the policies implemented under Part 2 of this Bill through the rules or connected guidance are meant to be compatible, and not incompatible, with the refugee convention, as interpreted by Parliament in this Bill, that can already be challenged by way of Section 2 of the 1993 Act. Our policies and decision-making will continue to be made in accordance with the Immigration Rules or published guidance.

What, therefore, would this proposed new clause add? My concern is that it adds a means for the court to question the interpretation given by Parliament to the refugee convention. I suggest respectfully that this would be contrary to a fundamental purpose of this Bill: for Parliament to define the nature of our obligations under the refugee convention while remaining compliant with those obligations. The proposed new clause potentially leaves the nature of obligations and terms under the convention open to the interpretation of the courts, removing the certainty that we are trying to achieve.

To put it in two sentences, if the aim is to make sure that the Immigration Rules and guidance are compliant with the refugee convention, that is already done under the 1993 Act. If the aim is any more than that, I respectfully suggest that it trespasses on a fundamental purpose of this Bill: that Parliament, and not the courts, should interpret how the UK implements the refugee convention. For those reasons, I respectfully invite the noble and learned Lord to withdraw the amendment.

Lord Brown of Eaton-under-Heywood Portrait Lord Brown of Eaton-under-Heywood (CB)
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Before the noble Lord sits down, do I understand that it is the Minister’s intention that, if this Bill is passed in its present form, in future no court shall look behind its provisions and consider what, under the convention and with the advice of UNHCR, its proper application and interpretation are? Is that the Minister’s intention?

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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In so far as the court has been told by Parliament that it can do that in the 1993 Act when it comes to the Immigration Rules, the court can do so. But, with the greatest respect, the courts interpret legislation; they are not there to go behind legislation with an autonomous meaning, so far as the courts are concerned, of what the refugee convention means. What the convention means is a matter for the member states, each interpreting it under the terms of the Vienna convention. With respect, it is not for the courts to second-guess Parliament’s interpretation of the UK’s obligations under the refugee convention.

Lord Judge Portrait Lord Judge (CB)
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My Lords, faced with the problems to which Part 2 gives rise, we end up, on the basis of the Minister’s response, with the situation in which the court will look at provisions that we say contravene the convention and say, “Ah, Parliament has said that this provision must apply. Although it contravenes the convention, it must still be applied.” The court must do so, notwithstanding that the intention of the Government was that the provision should be compliant.

We are going around in circles. We are back to “Oh, yes, it is” and “Oh, no, it isn’t”, and that is no way for us to be on a measure of such crucial importance to many people suffering from the consequences of persecution, war, famine and so many things that afflict other nations and with which fortunately we are not afflicted. The House really ought to decide this. I ask the House to decide and tell us what its decision is.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts
Monday 17th January 2022

(7 months ago)

Lords Chamber
Read Full debate Read Hansard Text Read Debate Ministerial Extracts
Moved by
161: Schedule 20, page 293, line 13, at end insert—
“10A_ In Schedule 24, omit paragraph 154(f).”Member’s explanatory statement
This amendment repeals an amendment of section 38(4)(j) of the Crime and Disorder Act 1998, which has been repealed.
Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, I know this is the business that most people have been waiting for. Amendments 161 and 162 have both arisen following the consolidation of sentencing procedural law into the Sentencing Code by the Sentencing Act 2020.

These amendments, as eagle-eyed noble Lords will have realised, omit provisions in Schedule 24 to the Sentencing Act 2020 and Schedule 13 to the Counter-Terrorism and Sentencing Act 2021 respectively. Those provisions are redundant, as they make amendments to provisions which have already been omitted or repealed. Omitting them will avoid any potential confusion regarding their operation. I beg to move.

Amendment 161 agreed.
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Moved by
162: Schedule 20, page 293, line 22, at end insert—
“Counter-Terrorism and Sentencing Act 2021 (c. 11)
12_ In Schedule 13 to the Counter-Terrorism and Sentencing Act 2021, omit paragraph 44.”Member’s explanatory statement
This amendment repeals an amendment in the Counter-Terrorism and Sentencing Act 2021 of section 106A of the Powers of Criminal Courts (Sentencing) Act 2000, which was repealed by the Sentencing Act 2020.
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Moved by
167: Clause 178, page 198, line 34, at end insert—
“(aa) section (Required life sentence for manslaughter of emergency worker);”Member’s explanatory statement
This amendment is consequential on the new Clause in the name of Lord Wolfson of Tredegar to be inserted after Clause 2 and relating to a required life sentence for the manslaughter of an emergency worker.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts
Baroness Blower Portrait Baroness Blower (Lab)
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My Lords, it is a pleasure to follow the noble Lord, Lord Carlile of Berriew. As some noble Lords will know, I spoke on issues relevant to this amendment at an earlier stage of the Bill.

In quoting the Taylor review, the noble Lord, Lord German, made the case for his Amendment 90A. It would be singularly inappropriate—I think this was the point made by the noble Lord, Lord Carlile—to debar all local authorities from setting up appropriate provision simply because of the use of the word “academy”. This is wrapped up with other aspects of educational policy. If the local authority is capable of providing what would manifestly be the best institution and provision for this group of young people, who need absolutely the best quality of education that can be afforded to them, it should do so. I take the view that the provision in Amendment 90A should categorically be in the Bill to ensure that we do not debar any local authority from engaging in the process to set up an institution. As has already been said, this does not require that local authorities should do it but it does not debar them; debarring them would be unreasonable.

Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, this group of amendments covers Part 9 of the Bill. I will cover the group in two parts, if I may.

Amendment 90A in the name of the noble Lord, Lord German, would allow local authorities to establish and maintain secure academies either alone or in consortia. The noble Lord kindly mentioned the sustained engagement that he has had with me and others on this matter; in turn, I acknowledge my gratitude to him for his time and commitment. As he mentioned, I wrote to him and the noble Lord, Lord Marks, outlining that, in our view, it would be legally possible for a local authority to set up an entity capable of entering into academy arrangements directly with the Secretary of State, and that this is not prevented by the Academies Act. Therefore, as I set out in that letter, there is no legal bar to what the noble Lord wants to happen. I understand that, as he said, he wants to put the matter “beyond any doubt”, but I have explained in writing that there is no legal doubt on this point at all; indeed, I think I heard him accept this afternoon that it is “clear” there is no legal bar. I therefore say to him and the noble Baroness, Lady Blower, that there is no issue of being debarred here. I suggest that the amendment is therefore unnecessary.

I accept that the Government’s policy remains that academy trusts are not local authority-influenced companies and that our position on secure schools is to mirror academies’ procedures. However, I can confirm that, when considering the market of providers of future secure schools, my department will assess in detail the potential role of local authorities in running this new form of provision. We of course recognise, as the noble Lord, Lord Carlile of Berriew, noted, that local authorities have a long-established role in children’s social care and the provision of secure accommodation for children and young people. In particular, the secure children’s homes legal framework may present a more straightforward route than the 16-19 academies framework for the expansion of local authority involvement in the provision of secure accommodation. However, I reiterate that there is no legal bar here. I therefore suggest that the amendment must necessarily be unnecessary.

I now turn to Amendments 90B to 90F, in the name of the noble Lord, Lord Ponsonby of Shulbrede. Local authorities have a duty, under the Children Act 1989, to ensure sufficient, appropriate accommodation for all the children they look after and to ensure sufficient children’s homes for other children whose welfare requires it, whether or not they are looked-after children. I recognise that some local authorities have sometimes found it difficult to access the most appropriate accommodation, particularly for children with the most complex needs. It is right to say, both from the judgment of Lord Justice Baker, which was mentioned, and indeed from other judgments, that some of these children have extremely challenging and very complex needs. It is also the case that, sometimes, children are placed in locations away from home when they may be better served by a placement in their local area if one were available. We are looking carefully at that, not only in my department but in others as well.

We are taking significant steps to support local authorities to fulfil their statutory duty. We have started a programme of work this year to support local authorities to maintain existing capacity and to expand provision in secure children’s homes to ensure that children can live closer to home and in provision that best meets their needs. In the spending review we announced £259 million to continue this programme to maintain and expand capacity in both secure and open residential children’s homes. We acknowledge, as the noble Lord, Lord Ponsonby, said, that it may take—I will use the same phrase—some time to see all the benefits of that capital investment, particularly when you are talking about new builds, but it is the case that the capital programme will also result in increased capacity in the secure children’s home estate in the shorter term as we seek to create more beds through investment in a range of projects, including extensions of current buildings, refurbishments and rebuilds. I know that in the judgment referred to by the noble Lord, Lord Justice Baker used the phrase “urgent attention”, and that is what we are giving this problem.

Ofsted has also taken steps to support local authorities in this area. It has an amended process to make it easier for local authorities or other providers to apply for registration of children’s homes in emergency situations. It is also now easier to open and run a single-bed children’s home, which can be one of the most commonly needed types of accommodation when the child has very complex needs. It can be almost impossible, sometimes, to have more than one child in that location. Ofsted has now published guidance on these changes, and I hope that will help as well.

Before I sit down, I should also remind the House of two other relevant pieces of work ongoing in this area. First, the independent review of children’s social care, which commenced in March last year, is looking at this whole area in a fundamental way. Secondly, also in March last year, the Competition and Markets Authority launched a market study examining the lack of availability and increasing costs in children’s social care provision, including children’s homes and fostering. It has proposed a number of changes, of which I will not go into detail now, but they are important. We will look at the full reports when they come out. I expect both of those pieces of work to be serious and substantial reports.

I recognise the aims of all noble Lords who have supported these amendments; we all share the same aims here, but I suggest that we have existing statutory requirements and significant, wide-ranging and independent reviews under way, looking at the whole care system, alongside that CMA market study. For those reasons, I hope the noble Lord, Lord German, will withdraw his amendment and the noble Lord, Lord Ponsonby of Shulbrede, will not press his. I urge them to do so.

Lord German Portrait Lord German (LD)
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My Lords, I am deeply grateful to all who have contributed and to the Minister, who has not been able to go beyond the text of the letter that he sent to my noble friend Lord Marks. Although I understand that, it just reinforces the position that I outlined at the beginning.

To reiterate the point made by the noble Lord, Lord Carlile of Berriew, we are seeking the best, and to not leave out a potential bidder who could be one of the best is all that this amendment is about. It is simply to make sure beyond doubt. We understand that there is a legal route through this. I did not read out the exact words that the Minister repeated, but there is a route through—although he does say that it would place burdens on local authorities. Interestingly, and moreover, he said earlier that it also conflicts with the policy of academies.

The one thing the Minister did say, both in replying and in his letter, was that they will keep this issue under review. The problem with keeping something under review is that the process will already have started, and keeping it under review does not mean that there will necessarily be any changes or any scrutiny in this House.

The noble Lord said that there are two routes: the academy route, which local authorities will be excluded from, and secure family accommodation, which they want to encourage local government to do. Charlie Taylor’s review and report seek integration, not silos. It would be sensible to make sure that, at this point, there is absolutely no doubt. For the simple reason that we have to be able to search for the best and get the best, this amendment should be part of the Bill and not part of some future discussion—which may or may not produce a sensible outcome, as far as I am concerned. I am therefore minded to seek the view of the House on this matter.

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Baroness Chapman of Darlington Portrait Baroness Chapman of Darlington (Lab)
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My Lords, it is a pleasure to speak in this debate because I have been making speeches on this topic for 12 years. I believe, if memory serves, that I was the Front-Bench speaker in the other place who proposed the amendment to the LASPO Bill. It is quite extraordinary. I think it is now 22 years since this was first suggested and, as others have said, we have had the Corston report. We cannot have a debate on women in prison without reference to my noble friend Lady Corston—Jean Corston—and the work that she has done. The idea of a women’s justice board has been around for so long because it is such a good idea. There is so much evidence of the impact, and probably the savings, that it would make, should we take that path.

There is a long-accepted problem—and I know the Minister accepts that there is a problem—with the failure of the criminal justice system properly to address the needs of female offenders. This leads to poor reoffending rates and devastation for families, with children often bearing the brunt. The social and economic cost is enormous. Women make up only 4% of the prison population and are still too easily overlooked in policy, planning and investment decisions for the reasons that my noble friend Lady Kennedy outlined so well. Female offenders are different from male offenders: they have different health needs, including pregnancy, miscarriage, breastfeeding and menopause. We know that these issues are neglected, and we know the failure to tailor provision for women affects reoffending rates.

The frustration is that the Government agree with all this, yet they seem constantly to fail to move the dial. Unfortunately, according to the excellent work done by the Prison Reform Trust, fewer than half, I think, of the commitments made in the Government’s Female Offender Strategy, which was published in 2018, have been met so far. We know that community sentences can be more effective than short prison sentences, yet the use of community sentences is dropping—it has dropped by two-thirds since 2010. Community provision for women needs to be so much better, and the quality everywhere needs to improve. There are many excellent projects, but provision is way too patchy. One of the functions of a women’s justice board, like the Youth Justice Board, would be completely to transform that.

The Government’s Female Offender Strategy is not being delivered quickly enough. This leads many of us to conclude that a new lead organisation for female offenders would make the difference. Since my noble friend Lady Corston’s report, understanding of female offending has improved so much—this is a real positive—and the Government have played their part in this. I believe Ministers want to act and want female offending to improve. I hope the Minister is not just going to stand up and say “We are making progress—bear with us”, because we can all see that it is inadequate. Nothing that has been done so far is making a sufficient difference. Interventions in this space are too often short-term. They leave the fundamentals of substance misuse, mental health, housing, financial literacy and domestic violence unaddressed. We know that self-harm in women’s prisons has reached record levels. The situation is getting worse, not better. More than 20% of self-harm incidents involve women, with 12,000 incidents in 2020 compared to around 7,500 in 2016. A strategy is great, and we need a strategy, but we need leadership to ensure that delivery takes place. A women’s justice board would provide the strategic framework to identify and prioritise the specific needs of women within the criminal justice system.

Having been around this a few times now, the Government have previously argued that this can be achieved through ministerial working groups or strategies, and it could have been done, but the truth is that so far it has not. Many of us will have visited women’s prisons and seen what happens. One of the most upsetting things I have ever seen was when I was present for visits where women were interacting with their preschool children. The response of the women and the children was difficult for prison staff as well. That was an annual thing in that prison—once a year that happened. There is no central co-ordinating body able to identify best practice and make sure it happens everywhere. We fail on that because the Government do not have that central body. Women are going out; they are not making progress—reoffending is as bad as it has ever been. I feel we have come to a point where it is time to bite the bullet and accept the idea of a women’s justice board.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, as noble Lords will be aware, we debated these amendments in Committee. At that time, they were withdrawn without a vote, although I acknowledge that, as the noble Lord, Lord Marks of Henley-on-Thames, fairly said, those who spoke in Committee overwhelmingly supported the amendment.

I have of course listened very carefully to the various speeches and points made around the House this evening. I think it is fair to say that the arguments in support can perhaps be distilled in four points. I set them out not to make the case against me stronger but perhaps at least to reassure the House that I have understood it. First, the Youth Justice board model has been a success in reducing the number of children entering the youth justice system or custody and, therefore, it is an appropriate model to follow as the needs of women are distinct. Secondly, sometimes their needs are similar, for different reasons, to the needs of children. Thirdly, women are often victims as well as offenders and largely commit non-violent and low-level crime. Fourthly, a women’s justice board would provide the effective leadership and drive to address the particular needs of women in the criminal justice system and divert them before they come into contact with that system by preventing offending in the first place. The House should therefore be reassured that the Government and I have understood and considered carefully the case. As the noble Lord, Lord Marks, said, we have had a number of very helpful discussions about it.

The Government recognise that women who are in or at risk of contact with the criminal justice system have distinct needs that require a distinct approach, and we have acted in a practical sense on that recognition. We published the Female Offender Strategy, which sets out a comprehensive programme of work to respond to those needs, and we remain committed to its delivery. The Advisory Board on Female Offenders provides external and independent oversight of the strategy, but my ministerial colleague in the other place, Minister Atkins, has also asked officials to review the wider governance arrangements for the strategy to ensure that they are fully fit for purpose to support the work across government which is vital to deliver the strategy.

I explained in Committee why the Government are not persuaded that the Youth Justice Board is the right model for addressing the needs of women. To take up the point made by the noble Lord, Lord Ramsbotham, and others, I again underline that I agree and accept that the Youth Justice Board has done extremely good work in its area. There is a short point here, but I suggest it is very important. We have a separate youth justice system. The Youth Justice Board is a reflection of that different system. It is a specialised justice board for a specialised and separate justice system. That is not just to make the physical point that children are still maturing, so the justice system applies to them differently. It is to make the point that the youth justice system is significantly different from the adult justice system in a number of respects.

Let me set out a number of them. First, with youth justice, there is a statutory aim

“to prevent offending by children and young persons”.

That is from the Crime and Disorder Act 1998. There is a greater focus on prevention and diversion. Custody is used as a last resort, as it is in the adult system, but there is greater focus in the youth justice system because there are separate community services provided by youth offending teams, which are part of local authorities. There is a separate youth court with specially trained magistrates with different sentencing powers. There is a separate sentencing framework for children that does not apply to adults. Of course, there is also an entirely separate custodial estate, which is managed in an entirely different way.

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Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, I too will be relatively brief. This debate is about balancing rights and balancing vulnerabilities, and I have been following it over months if not years. Unfortunately, I did not go to the teach-in organised by the noble Lord, Lord Wolfson. However, I have been to other events on Zoom where I have spoken to prison officers and the people involved in managing the situations discussed here. It is apparent to me that there has been an evolution in the prison officers’ and governors’ approaches. I have spoken to a number of them several times. I spoke to one women’s prison where transgender units operated for a period, and the way they were operated was later changed. I have to say the governors I spoke to seemed—I do not want to use the word “relaxed”—to think that they could manage the situation. That is what I was told, and I have every reason to believe in their professionalism in dealing with an evolving situation—as we have heard from noble Lords, there is an increase in trans prisoners; the figure of 20% since 2019 was mentioned.

I have visited quite a few prisons over the last 10 years and I am always impressed by the quality of the prison staff, the governors and the prison officers. The basis of my view is that I trust them to make the right decisions. I think they are dealing with very difficult circumstances and I think that they can manage risk. As the noble Baroness, Lady Barker, said, they have policies which have evolved over a period, which include the safety of the prisoners and the staff. I was pleased to hear that during the teach-in the Minister said that he is willing to support further research into this matter. It is an evolving situation, but for my part I am content that the current complex case boards that make these difficult decisions should continue to do their work.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, this amendment relates to the management of transgender prisoners. The result of the amendment would be that transgender prisoners would “ordinarily”—and that word is used twice in the amendment—be held in a prison matching their sex as registered at birth. I will come back to that word “ordinarily” later on.

I should first record my sincere thanks to the noble Lord, Lord Blencathra, for his time. I am pleased that he found the teach-in with officials from the MoJ and HMPPS to be helpful. I am grateful also that my noble friend Lord Cormack and the noble Baroness, Lady Fox of Buckley, were able to attend the teach-in. I am conscious, from what they said then and this evening, that I did not persuade them at that time. I am not sure that I am going to persuade them in the next few minutes, but I am going to try.

I am not proposing to refer to anything said on Twitter. That is despite the fact that I think I am one of the few ministerial twitterers—or is it tweeters?—around. My tweets have become a lot duller since joining the Front Bench, but I can say that on this subject Twitter exhibits heat and no light whatsoever. I am grateful for the relative safety and sanity of your Lordships’ House.

Under the amendment, transgender prisoners who are not held with prisoners matching their sex as registered at birth would be held in separate accommodation such that they have no contact with people of their acquired gender. That is the inescapable result of the amendment. I suggest that it is unnecessary. Transgender prisoners can already be held in prisons in matching their sex as registered at birth where this is assessed as appropriate. In practice, the vast majority of transgender prisoners are already held in prisons matching their sex as registered at birth. The small number who are held otherwise have been through a rigorous multi-disciplinary risk assessment process. There is already provision, as I will explain in a moment, for transgender prisoners to be held separately from other prisoners of their acquired gender if doing so is deemed necessary.

We take the allocation of transgender prisoners extremely seriously. This is a subject which, as the last hour or so has demonstrated, arouses a lot of controversy and passion. But the approach we have put in place allows us to strike an appropriate balance—the noble Lord, Lord Cashman, put his finger on that as the right word, as it is a balance—between the safety, rights and well-being of transgender prisoners and that of all other prisoners in the estate.

Police, Crime, Sentencing and Courts Bill

Lord Wolfson of Tredegar Excerpts
Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, we agree with the noble Lord, Lord Ponsonby, on the amendments he moved or spoke to on proceedings involving children and health screening, and with the noble Lord, Lord Carlile. We support those amendments, but I will speak to Amendment 97CA from the noble Lord, Lord Pannick, on the use of live links in jury trials, to which I have put my name.

This amendment raises two important questions about the nature of juries and of jury trial. First, how important is it to the trial process that juries see and hear witnesses give their evidence live? Secondly, how important is it to the trial process that the relationship and balance between judge and jury is live rather than remote? On the first issue, the noble Lord, Lord Macdonald, and the noble and learned Lord, Lord Brown, made the point that jury trials depend, more than anything else, upon the ability of jurors to weigh up the evidence of witnesses. They have to assess two things: veracity, or whether the witness is trying to tell the truth, and accuracy, or whether he or she has got it right.

As others, including the noble Lords, Lord Pannick and Lord Carlile, have said, after nearly two years of the pandemic we have all become completely familiar with the process of remote discussion and meetings. None of us, I feel, would now argue that remoteness makes no difference. In this vital area of our national life, as the noble Baroness, Lady Bennett of Manor Castle, pointed out, we entrust decisions about the guilt or innocence of those charged with serious crimes to juries of 12 who listen to and weigh up the evidence of witnesses, and make decisions about truth or falsehood, reliability or inaccuracy, honesty or dishonesty, and intent, accident or misadventure. Those jurors will certainly consider objective evidence that has the same effect when seen or heard remotely as it has when seen or heard directly. But much of the evidence they will hear, and usually the most critical evidence in jury trial cases, has to be subjectively judged, as the noble Lord, Lord Macdonald, said. That is done by references to the witnesses’ demeanour, body language, response to cross-examination and emotional responses.

These are matters on which juries might initially and quite legitimately disagree. Their assessment—the different assessments of all 12 of them—will be the subject of detailed discussion during their deliberations and depend upon impressions. We would be undermining our jury system by depriving jurors of the opportunity, in the case that they decide, to share their experiences of the witnesses and the experiences that they have had live. I do not believe that undermining the jury trial in this way can possibly be justified.

On the second point about the presence of the judge, counsel and jury in the same place, the role of the judge and jury and the relationship between them is a delicate one. I agree with the noble Lord, Lord Pannick, that the judge’s position is to ensure that trials are conducted in a responsible and serious way. I also think there is considerable importance in that relationship that the independence of juries is maintained. A stock sentence that judges quite properly use when summing up is when they tell the jury, “It is a matter for you, members of the jury,” and it is.

However, for juries to make the decisions they are charged with making, they must not feel to be, seem to be or, still less, actually be at a disadvantage compared to the judge who has seen and heard and assessed the witnesses live. When the judge recounts a particular piece of evidence in summing up, juries must not be cowed or persuaded into accepting what they may perceive to be the judge’s view of the evidence. They must be able to say to each other: “He or she may have said that, but I did not believe that witness—did you see how scared they looked?” That is what jury independence means. Jury independence is fundamental to our system and why it is so important. For that reason, I completely support the amendment from the noble Lord, Lord Pannick.

Lord Wolfson of Tredegar Portrait The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
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My Lords, this group contains amendments covering the application of live links to children and vulnerable people as well as to remote juries. I will come to the remote juries point separately later.

First, to make sure that we are all on the same page, I remind the House that Clauses 168 and 169 do not mandate remote or video hearings. How a hearing is to be conducted is a matter for judicial decision on a case-by-case basis. These clauses ensure that, if appropriate, observers can watch a hearing taking place to ensure that the principle of open justice can be maintained.

Amendments 97A and 97B seek to prohibit remote observers from being present in all cases in which a child is among the parties. Amendment 97C similarly seeks to remove children from the application of Clause 170. I suggest both these amendments are unnecessary and would inhibit both the principle of open justice—which is a fundamental principle in this jurisdiction—and the principle of judicial discretion. It would inhibit the ability of courts to use audio and video technology where the court sees fit and when it is in the interests of justice to do so.

I turn first to Amendments 97A and 97B. The effect of these amendments would be that all such remote hearings would effectively have to be held in private, including, for example, any multiparty litigation in our civil courts or tribunals in which a single claimant—perhaps one of a number of claimants—is under 18. That would unnecessarily constrain the transparency of our justice system and impede the principle of open justice.

While I accept the sentiment that underpins the amendments, they are unnecessary because we have sufficient tried-and-tested legislation in place to safeguard the privacy of children in these proceedings. That is set out in Section 47(2) of the Children and Young Persons Act 1933. We also have existing procedure rules under which the court can hold any hearing in private in order

“to protect the interests of any child or protected party”.

Therefore, I suggest to the House that that statutory provision and the procedure rules provide sufficient protection to safeguard the privacy and well-being of young people in the justice system, whether the hearing takes place in-person or remotely.

Amendment 97C would prevent the court making a direction to enable any participant in a hearing to attend by live link where a child is party to proceedings. Again, it is important to protect the interests of children, but we have clear support and guidance in place which mandates the court to consider and have regard to the welfare of the child, to make sure that each child is fairly assessed and represented, is sufficiently supported, can understand what is happening, and is able to engage and participate in proceedings and be kept safe. That is set out in the Criminal Procedure Rules and criminal practice directions.

I recognise, as the noble Lord, Lord Carlile of Berriew, said, that, in the majority of cases, it may well be more appropriate for children to attend a hearing in person, and the Criminal Procedure Rules recognise this. But one must recognise that there may be situations where it is more beneficial for a child, whether as a witness or a defendant, to participate by live link; for example, to protect a child witness from having to be in court with the defendant. Clause 170, as drafted, gives the court that inherent flexibility.

I will come to Amendment 97D in a moment but let me first turn to Amendment 97CA, tabled by the noble Lord, Lord Pannick, which seeks to exclude juries from the provisions in Clause 170 that would otherwise allow a jury assembled together to take part in a trial through a live video link, where appropriate and where the court has decided that it would be in the interests of justice to do so. I will come to the detail of the amendment in a moment, but let us not lose sight of one important point. This amendment is designed to strengthen and support the jury system. It is designed to ensure that we can continue to hold jury trials in circumstances where it might otherwise be impossible, as we experienced for a certain time in this jurisdiction during the pandemic. I am pleased that we were one of the first jurisdictions in the world to get jury trials back up and running, but we could not do as many as we would normally because of the social distancing constraints.

Why are we so keen to maintain jury trials? The answer is simple and perhaps a little topical. The jury is a fundamental part of our criminal justice system. To adopt the words of the noble Lord, Lord Pannick, it is a cornerstone of our liberty. True it is that the cornerstone gets a little defaced with some graffiti from time to time, but it is, none the less, a cornerstone of which we should be proud.

The noble Baroness, Lady Bennett of Manor Castle, threw something of a gauntlet down to me. I am very happy to pick it up, briefly. Juries sometimes return verdicts that raise an eyebrow, but I know from bitter experience that it is not unknown for judicial decisions to trouble the eyebrows too. In a proper case, there is a procedure, once the jury has brought in its verdict, to ask the Court of Appeal to consider and determine specific points of law to assist in future cases without disturbing the actual jury verdict in the instant case.

If the noble Baroness wants to have a crack at my right honourable friend the Attorney-General, she can, but she cannot, I am afraid, stand up and have a crack at her while betraying fundamental ignorance of the underlying legal principles. Counsel in the case himself said that his arguments were “new and complex”. Those are precisely the points which would be suitable for reference under Section 36 of the Criminal Justice Act 1972, a provision with which I am sure the noble Baroness is very familiar. I am also sure that she has read the recent case in the ECHR of Handzhiyski v Bulgaria, decided on 6 April 2021, which discussed in terms whether the provisions of Article 10 of the ECHR did or did not apply to a charge of criminal damage.

I am very happy to respond on the glories of the jury system, but I respectfully suggest that, if the noble Baroness is going to make a point about the conduct of the Attorney-General, she looks at the underlying legal position first. There are certainly points in the Colston case which an Attorney-General might properly decide to, or not to, refer to the Court of Appeal. That is a matter for the Attorney-General.

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Lord Ponsonby of Shulbrede Portrait Lord Ponsonby of Shulbrede (Lab)
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My Lords, I pay tribute to the noble Earl: he has been dogged in his pursuance of this and I understand he has had constructive discussions with the Minister. I look forward to what the Minister is going to say to, in the noble’s Earl words, flesh out the proposals in the White Paper, and how these may lead to greater support for prison officers. One specific question for the Minister is how they propose to monitor potting and whether it is done by somebody acting in extreme distress or whether it is part of a planned tactic, if you like, within the prison.

In conclusion, I repeat my tribute to the noble Earl—it appears to me that his time in the TA may have led to his having some empathy with prison officers. I do not know, but nevertheless I support his amendment.

Lord Wolfson of Tredegar Portrait Lord Wolfson of Tredegar (Con)
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My Lords, I also thank my noble friend Lord Attlee for tabling this further amendment on potting, which is vile behaviour and undoubtedly a horrific experience for those who become victims of this practice. I say unambiguously that it is therefore right that such incidents are prosecuted where there is sufficient evidence or that they are otherwise dealt with through prison adjudication.

My noble friend was particularly concerned about the availability of spit kits to collect evidence where crimes are committed. I hope that I can reassure him by saying that some prisons already purchase spit kits locally as a matter of course, but we will consider further whether there is a need to make them available to prisons nationally, as part of our focus on reducing crime in prisons.

Earlier discussions with the police and CPS confirmed that the use of body-worn cameras, rather than spit kits, would offer the greatest means of providing evidence to enable prosecution of crimes in prisons. That is why we have concentrated on providing these. Indeed, we are introducing a new generation of body-worn video cameras during this year, with newer, more technologically advanced cameras that will be available to every prison officer who needs one. They include a pre-record facility that effectively records and overwrites footage—so the pre-record footage is saved when you press a button. They are similar to cameras that are available to other people in the criminal justice system and mean that it will be easier to provide evidence of potting and therefore to support a prosecution.

The noble Lord, Lord Paddick, correctly identified that, in the amendment, this is a preparatory offence and tries to capture behaviour even where the act of potting itself may not yet have occurred or have occurred at all. The offence would apply where an individual possesses, provides or allows others to use their bodily fluids, intending them to be used for malicious purpose—and where an individual has assisted, aided or encouraged a crime. Of course, doing those preparatory acts is already a crime under Sections 44 to 46 of the Serious Crime Act 2007 or possibly under the Criminal Attempts Act 1981. The penalties for those preparatory offences are the same as those for the substantive offence.

We are also concerned about a practical difficulty: collecting urine samples may be impeded by the wording of this amendment. We are also concerned that it does not offer, in terms, a defence for those who do not intentionally facilitate this but whose bodily fluids are used by someone else for a malicious purpose. However, I will not say any more about that because my noble friend has recognised that the Government have listened to him on this and are taking the matter seriously. We recognise that more can be done to improve the effective prosecution of crimes in prison. It is a priority, and we will continue to work to ensure that those agencies and organisations prioritise serious crimes, enabling clear criminal consequences when they occur. HMPPS works with the police and CPS to improve rates of prosecutions for crimes committed within prisons.

I know that my noble friend is motivated by his admiration of the work of prison officers—I will not speculate about the genesis of that. But the fact is that they have to deal with some of the most difficult and dangerous members of our society. We in the Ministry of Justice share that view. In the prisons White Paper, published in December last year, we set out a zero-tolerance approach to crime in prisons. We will set up a crime in prisons task force, which will identify and expose any systemic failings that allow continued criminality in prisons, enhancing our capabilities to disrupt crime and ensuring that evidence and investigations lead to more criminal justice outcomes. We will commission the taskforce to look specifically at potting offences.

The White Paper also sets out our commitment to refer the most serious crimes, such as assaults on prison officers, to the police, in accordance with the crime in prisons referral agreement, which exists between Prison Service, the CPS and the National Police Chiefs’ Council. I appreciate that I have dealt with that fairly quickly, but I hope that I have reassured my noble friend that the Government have listened very carefully to what he has said.

I will respond to the point put to me by the noble Lord, Lord Ponsonby. Offences of potting are captured in published statistics—specifically the quarterly Safety in Custody Statistics. But if I can add anything to what I have just said, I will write to him. I hope that, for those reasons, my noble friend will feel able to withdraw his amendment.